Allahabad High Court
Om Prakash vs State Of U.P. on 7 November, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:196006
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 345 of 1986
Om Prakash
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s)
:
Alok Kumar Rai, S.P.S. Raghav
Counsel for Respondent(s)
:
A.G.A.
HON'BLE ANISH KUMAR GUPTA, J. Judgement Reserved on 15.10.2025
Judgement Delivered on 07.11.2025
1. Heard Sri Alok Kumar Rai, learned Amicus Curiae for the appellant and Sri Pankaj Srivastava, learned A.G.A. for the State.
2. The instant criminal appeal has been filed by the appellant herein aggrieved by judgment and order dated 28.01.1986 passed by IVth Additional Sessions Judge, Bulandshahr in Sessions Trial No. 488 of 1983 (State vs. Satish and Om Prakash @ Om), whereby the appellant herein was convicted for the offence under Section 307 read with Section 34 I.P.C. and was sentenced to undergo five years rigorous imprisonment.
3. The instant appeal was admitted by this Court on 30.01.1986 and the appellant herein was released on bail. As per the Custody Certificate dated 11.09.2025, submitted by the learned A.G.A., issued by the Jail Authority, the appellant herein had undergone only a sentence of two months and six days during the trial of the case.
4. The brief facts of the case are that the informant- Mangeram s/o Daglu Singh, lodged the F.I.R. on 03.09.1981 at 6:40 in the morning, alleging therein that on 02nd September, 1981 around 11:30 P.M. he was in his tube-well. Around 11:30 P.M., he heard the sound of firearm. Then, he went towards his village and collected some of the villagers and thereafter came back to the tube-well. When he reached there he found that one Vijay s/o Mahipal, from Village- Baina, P.S.- Tippal, District- Aligarh, was lying there in injured position and when enquiry was made by him, then, the injured told that the two persons, namely Satish s/o Natthi and the appellant herein along with two other persons not known to the injured, had called him where they have fired at him with intention to kill him. They have taken him in the Khanpur jungle near railway line and considering that he is dead they have left him there. When the injured regained his consciousness, he came to the tube-well as he was feeling thirsty. The report of the incident was got scribed by the informant from one Joginder Singh. Thereafter, leaving some persons to take care of the injured he came to the police station to lodge the F.I.R. On the basis of the same, the F.I.R. was lodged at 6:40 in the morning. Necessary entries were made in the General Diary.
5. During the investigation, the Investigation Officer (IO) recorded the statement of witnesses, prepared the site-plan and also collected the bloodstained and plain soil and also sent the injured person for medical examination. After investigation the IO submitted the charge-sheet under Section 307 I.P.C. against the appellant herein along with one another person. After committal of the case to the Sessions Court the trial was conducted. During the trial of the case the charges under Section 307 I.P.C. were framed against both the accused persons, who have denied the charges and claimed trial.
6. In support of the prosecution case, the prosecution have examined PW1- Vijay Pal (injured), PW2-Satyapal Singh, the cousin brother of the injured, PW3- Mangeram (the informant), PW4- Bengali Singh and PW5- Sub-Inspector Ram Singh (the Investigation Officer), PW-6, Dr. N.K. Govind and CW1- Shri Nagendra.
7. In their 313 Cr.P.C. statement accused persons have denied the prosecution case and stated that they have been falsely implicated due to enmity. The witnesses have also deposed enmity against the applicants. In his 313 Cr.P.C. statement, the co-accused Satish had stated that he was having enmity with the cousin brother of the injured due to which he has been falsely implicated in the instant case.
8. After considering the evidence available on record, the trial court has convicted and sentenced the appellant herein along with the co-accused person as stated herein above. Being aggrieved by the same, the instant appeal has been filed by the appellant herein.
9. Learned Amicus Curiae for the appellant submitted that as per the own statement of the injured witness, there was no motive, occasion, or any enmity for the appellant herein to cause the injury to the injured. It is further submitted that even the informant Mangeram has also not supported the prosecution case except identifying the signatures on the written report submitted by him at the police station for registration of the F.I.R. It is further submitted by learned Amicus Curiae for the appellant that even the PW-4, Bengali Singh, who is an independent witness of the case, has not supported the prosecution case. Though, he has admitted that he was known to the appellant as well as the other accused persons, however, as narrated by him, though he has seen that some persons were fighting with each other, but he could not identify those persons and the appellant herein was not the person who was fighting near the railway station. The said independent witness has also been declared hostile. Thus, learned Amicus Curiae further submits that since the co-accused- Satish, was having an enmity with the cousin brother of the injured, therefore, at his behest, the appellant along with other co-accused person has been falsely implicated in the instant case. Therefore, learned Amicus Curiae submitted that the appellant herein is the wrongly convicted person and thus seeks his acquittal.
10. Per contra, learned A.G.A. submits that the injured witness- Vijay Pal, has categorically assigned the role to the appellant herein, who was armed with the country-made pistol along with co-accused- Satish and other unknown persons who were also having the country-made pistol. All the four persons have assaulted with the firearm on his body as he has denied to cooperate with them in their plan of dacoity of the train. Since the appellant herein was known to the injured, however, there was no occasion for him to falsely implicate the appellant herein. The injuries sustained by the injured are fully supported by the medical examination report, which has been duly approved by Dr. N.K. Govind.
11. It is further submitted by learned A.G.A. that the prosecution case is duly supported by the injured witness as well as the PW2- Satyapal. It is further submitted by learned A.G.A. that there can be no better witness than the injured witness himself. There was no occasion for the said injured witness to leave behind the actual culprits and falsely implicate the appellant herein. Thus, there is no illegality in the conviction and the sentence of the appellant herein. Accordingly, learned A.G.A. dismissed all the appeals filed by the appellant.
12. Having heard the rival submissions so made by learned counsel for the parties, this Court has carefully gone through the record of the case. In the aforesaid incident, the following injuries were sustained by the injured PW1- Vijay Pal.
1. Gunshot wound to the front of the right forearm, in the ulnar region. The wound was 3 cm by 2.5 cm in the center, surrounded by a festering wound. Two X-rays were recommended.
2. The hole was found on the upper side of the right arm measuring 105 cm x 105 cm and an X-ray was advised.
3. A gunshot wound was found on the left side of the front of the abdomen, below the chest, measuring 1 cm x 1/2 cm in size. The abdomen was open. An X-ray was recommended.
4. Two sore marks on the front center of the left chest, about a mile apart, was the direction of the lump. It measured 6 cm (1/4 cm) in size. A small lump was felt under the skin. An X-ray was recommended.
5. A bullet wound measuring 1/2 cm x 1/2 cm, deep to the muscle. An X-ray was recommended. All injuries were likely caused by clear fire jars. The victim was kept under observation and was admitted. The wound was in good general condition, located in the middle of the front of the left thigh. The condition was very poor. A timely medical report was prepared, which is Exhibit 10. Injury No. 3 to the buttocks could have been fatal. These injuries were inflicted on the night of 2/3/9/1981.It is possible that it occurred at 11:30. Injuries 1, 2, and 3 could have occurred within 6 feet. All injuries were likely to have occurred from the front, not from all sides. The duration of the injuries could vary by 4-6 hours on both sides. Injury No. 3 had a Kalima, which could have occurred from within 4 feet. These injuries could have occurred from about 4 minutes. He had mentioned Marok's condition in the report.?
13. The aforesaid injuries were duly supported by PW6- Dr. N.K. Govind. According to him, the condition of the injured was very serious. The medical examination was prepared at the time of his medical examination. Injury No. 3 could have been fatal and these injuries were caused in the intervening night of 02/03.09.1981 at around 11:30 PM. Injuries No. 1, 2, and 3 were caused from a distance of six feet and all the injuries were caused from different sides and not from all sides. There could be difference of timing of injuries - four to six hours both sides. Since the Injury No. 3 was blackened, therefore, it is possible to have been caused within a distance of four feet.
14. PW-1 Vijay Pal, who is the injured witness, has stated that the incident is about three and half years prior to his deposition at around 11:30 PM. The incident was caused in between village- Nagla Baksi and village- Khanpur, near the railway line. The accused Satish, the appellant herein, and two other persons had fired upon him due to which he sustained the injuries. The appellant herein was having the country-made pistol. The co-accused was having a pistol and two other unknown persons have also country-made pistols. It is further stated by him that he was wrestler and used to do wrestling. Prior eight-nine days of the incident, he had come to Village- Dhanaura at the house of his aunt (mausi). Prior to the same, he has also participated in wrestling competitions at Dankaur, Gangraul and Dhanaura. He knew the accused Satish and the appellant herein due to the wrestling competitions only. After the wrestling competitions, they used to give him prize money. From village- Dhanaura, the place of incident was about a mile. On the date of incident, around 09:30 P.M., the appellant herein has come to the house of his maternal aunt. He told that Satish is calling him and he want to talk regarding the wrestling. At that time, his cousin brother, Satyapal, was also present there. He asked him to drink the milk and then go. However, he said that he will come after a little while and thereafter he will take the milk. When he reached along with the appellant herein to the house of Satish, then, he found that Satish and two other unknown persons were present there. Satish told him that at around 11:30 P.M., one train will come which is carrying Rs. 5,50,000/-, they should go and loot it. Then, Vijay refused the same and said that he did not do such things. Then, they have threatened him and all of them have took out the pistol and revolver and pointed at him and took him along with them. They reached near the railway line where the incident has been occured. The train came from the side of Delhi at around 11:30 P.M. Looking at the line, Satish and Om asked to take the position. At this, all of them sat down and in the light of the train, he saw that the accused Satish and the appellant herein and one another person have fired from their firearms upon him and due to the injuries sustained by him, he fell down and became unconscious. Having considered that the witness has died, they left the place. He regained his consciousness after around one hour, then, he felt thirsty and in search of water, he reached to the tube-well. At that time there was no person in the tube-well. Subsequently, ten to eleven persons came there. Having found the injured, they asked him about incident which he narrated to them. At around 2:00 A.M., for the whole night, he stayed in the tube-well and the person who owned the tube-well had informed with regard to the incident in the next morning in the police station. Thereupon, the police came there at around 8 to 9 in the morning and had took him on their jeep and got his medical examination conducted. This witness has stated that he don't know why he has been assaulted by them because he was not having any enmity with the aforesaid persons.
15. PW-2, Satyapal Singh, is the cousin brother of the injured Vijaypal. He states that the incident is of around three to four years back. The incident was caused near the railway road, Nagla Baksi, which is three to four kilometers away from their village. Vijaypal is the resident of Aligarh, who came their eight to ten days prior to the incident. He is a wrestler and prior to the incident, he was there in his house. Around 9:00 P.M., the appellant herein came to call him stating that Satish is calling him and on such request made by the appellant, Vijay Pal has gone along with him. His mother has asked him to drink the milk but he said that he will come back and take the milk, however, he didn?t return back on that night. They have gone to the house of Satish and the appellant herein to find them but they had not found in their house and on next day in the morning they came to know that the appellant and the co-accused- Satish has assaulted Vijay Pal with firearm. At that time Vijay Pal was in the injured condition in the police station and was unconscious and was talking after some breaks. He was sent to the civil hospital where his medical examination was conducted. On the same day, the doctor had advised that the condition of the injured was serious, therefore, he should be taken to AIIMS Delhi, where he was taken and admitted for seventeen days. Both accused persons are of his village. They have no enmity with the appellant herein nor they were having any good relations. However, with the accused Satish they were having some litigation due to which Satish was having enmity with them and there was some quarrel with regard to some land. There was friendly relation with the appellant and co-accused Satish.
16. PW3- Mangeram, is the informant who got the written report scribed. He stated that he was having a tube-well in the jungle and used to sleep in the tube-well. On the date of incident, at around 12 O?Clock, he heard the noise of the firearm, due to fear he came to the village, thereafter, he collected some persons and went back to the tube-well. Then, he saw that one person was lying there in the injured condition. He was not conscious and thereupon he has given the intimation to the police station. He has only signed on the report, as he is not literate. The said report was got scribed by the Station Officer (SO) from one Nagendra Singh. This witness was declared hostile. He was cross examined by the Government Counsel. He stated that due to fear he has signed the report and he has not complaint about the same to anyone. His statement was not recorded by the IO. However, he has admitted that he was the Sarpanch of the Corporative Society and had worked for three years. He further admitted that the police have come there in his tube-well for investigation. He denied that the injured was conscious while he was there in the tube-well.
17. PW-4 Bengali, is the person who appears to be a chance witness who states that he knew Vijay pal, the injured. He states that on 2nd September, 1981 at around 10:00 P.M. he got down from the train at Chola Railway Station. Thereafter, he proceeded for Dhanaura village. After coming about a furlong from the station towards Dhanaura village, then, he saw some persons were fighting with each other, however, he could not identify them. Four persons were there. After looking at the co-accused- Satish and the appellant herein in court he said that he knew them, they were not the persons and submitted that he could not identify the said four persons, therefore, he could not say with certainty that out of those four persons the two accused persons were there. This witness was also declared hostile and was cross-examined by the Government counsel. In the cross-examination, this witness admitted that on the date of incident, Vijay Pal has sustained the firearm injury near railway line. However, he denied that Vijay Pal was known to Satish was not. He came to know in the morning that Vijay Pal sustained firearm injuries, after which police came there and arrested the appellant herein. He didn't know anything about enmity of Satish with the cousin brother of the injured Vijay Pal.
18. PW-5, is the Sub-Inspector Raj Singh, who is the IO during the investigation. He stated that in September, 1981 he was posted as second officer in police station Kakod. On 03.09.1981, at 6:40 in the morning the Constable- Har Narayan, had recorded a report on the basis of written report submitted by the informant. GD entries were made and thereafter the investigation was handed over to him. On the indication of the informant- Mangeram, injured- Vijay Pal, Smt. Angari and Baghel, he had prepared the site-plan and recovered the blood stained and plain soil and also the blood stained stones. Memo was prepared. The statements of witnesses were recorded. The informant and the witness Bengali have told him that five persons came from the side of the village. They were asking Vijay Pal to go along with them else he will be killed. Satish was having the licensed revolver. Dr. Mohammad Sami and the appellant herein were having the pistol. Fourth person was armed with knife and Vijay Pal was surrounded by them. After completing the investigation he submitted the charge-sheet on 17-10-1981.
19. PW6- Dr. N.K. Govind, who has proven the medical examination report as already noted herein above.
20. CW1, Nagendra Singh who scribed the report, has stated that this report was written by him on the dictation of the police officer. He was declared hostile. In the cross examination he has stated that on 03.09.1981, he has gone near police station- Kakod for taking diesel, where informant- Mangeram along with injured Vijay Pal was there at the police station. He reached at the police station. Mangeram told that he was illiterate and asked him to write a report for him. Thereafter, he has written the report not on the dictation of Mangeram, but on the dictation of Police Officer as he was afraid of the Police Officer. In his cross examination, he has also stated that he did not know injured Vijay Pal, however, he knew Om Prakash and Satish.
21. Thus, from the aforesaid evidence as available on record the main witness is none else but the injured Vijay Pal himself. Vijay Pal was the resident of some other village. Satish, the appellant herein, informant- Mangeram and scribe Nagendra were resident of same village. The deposition of the informant, scribe of the report- Nagendra Singh, independent witness- Bengali, were all residents of the village of the appellant herein, had subsequently did not support the prosecution story in total. Rather, they have tried to distort the story. However from the story as narrated by PW1, injured Vijay Pal, there is no material available on record to cause any doubt upon his deposition. He is firm in his deposition and there is no occasion for him to falsely implicate any person including the appellant herein as he was not having any enmity with the appellant or the co-accused persons.
22. The motive for causing the incident is that the injured Vijay Pal was a wrestler and therefore, a powerful person. The appellant herein and the co-accused persons wanted him to participate in their illegal activities of looting trains, which the injured denied. Due to this denial, they forcibly took him near the railway line, whereupon coming of a train, they fired upon the injured Vijay Pal and having considered that the injured is dead, they left the place. Thereafter, the injured came in search of water in the tube-well of the informant- Mangeram, which is duly supported even by the deposition of the hostile witness, informant- Mangeram.
23. CW1, Nagendra Singh has admitted in his cross-examination that he scribed the report on the request made by the informant- Mangeram. However, he states that the said report was written by him on the dictation of the police officer and not of informant- Mangeram, this is because neither the informant nor the scribe wished to depose against their own villagers, due to the pressures created by the witnesses, otherwise the incident as narrated by the injured Vijay Pal is duly supported by the medical examination report of PW-6 as well as by the IO, who had no relation with either of the parties and there is no occasion for them to falsely depose in the court against any of the accused persons.
24. Thus, when the injured witnesses available and who have categorically deposed about the incident which inspires confidence and has also corroborated by the medical examination report which is duly proved by PW-6, Dr. N.K. Govind, thus this Court does not find any infirmity in the impugned judgment and order dated 28.01.1986 passed by the IVth Additional Sessions Judge, Bulandshahr, whereby the appellant herein was convicted for the offense under Section 307 I.P.C. and sentenced to undergo five years? rigorous imprisonment. Accordingly, the instant appeal is dismissed.
25. The appellant herein is on bail. His bail bonds are canceled. He is directed to surrender forthwith before the trial court concerned for serving out the remaining sentence. In case he does not surrender, the trial court shall take all necessary steps to apprehend the appellants herein for serving out the remaining sentence in accordance with law. While doing so, the trial court shall also issue necessary process against the sureties of the appellants as well.
26. Let the trial court record be returned back to the trial court for further necessary action as directed herein above.
27. This court appreciates the assistance provided by Sri Alok Kumar Rai, learned amicus curiae, who has assisted the Court and for the service rendered by him, an honorarium of Rs. 10,000/- shall be paid to him as per rules.
(Anish Kumar Gupta,J.)
November 7, 2025
Shubham Arya
